People v. Reeves

Opinion

NEWSOM, J. The instant appeal is from the judgment, after a jury trial, convicting appellant of burglary, with an enhancement for a prior forgery conviction.

A review of the factual background shows that, on Christmas Eve of 1979, a private security guard observed a man trying to break into Larmar Brothers Tire Shop in Salinas, California, and at once called the police. A few minutes later, Officer Olea arrived, found a broken entrance-gate, and saw appellant inside the lighted shop, carrying a tire. When searched, appellant was found to be carrying a tool pouch.

On this and related evidence, appellant was convicted, the jury having obviously rejected his testimony that he was a mere drunken trespasser who crawled through an already existing opening in the metal gate, probably to escape the rain, and who, as an electrician, always carried tools with him.

I

Appellant’s first contention on appeal is that the trial court improperly denied his motion to strike a 1972 forgery conviction as being invalid under Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709], and its California corollary, In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449].

The transcript of the proceedings of the 1972 plea were unavailable, having been destroyed pursuant to Government Code section 69955, and the trial court’s denial of the motion to strike was therefore based on the minute order concerning the plea, which states that, “The Court finds defendant knowingly, intelligently and voluntarily waived his rights including rights to jury trial, right against self-incrimination, and right of confrontation of witnesses. Before plea is entered, defendant is advised that based upon his past record, he probably will be sentenced [68]to state prison.” From this order the court concluded it could reasonably infer the constitutional validity, in terms of advisement and waiver, of the prior guilty plea.

A split of authority exists on the issue of whether a motion to strike may be used to collaterally attack a prior conviction on grounds other than denial of the right to counsel (People v. McFarland (1980) 108 Cal.App.3d 211, 219 [166 Cal.Rptr. 429].) In People v. Coffey (1967) 67 Cal.2d 204 [60 Cal.Rptr. 457, 430 P.2d 15], the California Supreme Court first explicitly recognized such a procedure, explaining as follows: “Though these principles were first given application in a series of cases involving collateral attacks on final judgments (In re Woods, [1966] 64 Cal.2d 3 . ..; In re Luce (1966) 64 Cal.2d 11 ..In re Tucker (1966) 64 Cal.2d 15 ...), it is clearly in the interest of efficient judicial administration that attacks upon the constitutional basis of prior convictions be disposed of at the earliest possible opportunity, and we are therefore of the view that, if the issue is properly raised at or prior to trial, it must be determined by the trial court. We are further of the view that the procedure here sought to be utilized, to wit, a motion to strike the prior before trial, is a proper method by which to raise the issue and initiate proceedings to determine the constitutional validity of the prior conviction. [1i] We emphasize, however, that the issue must be raised by means of allegations which, if true, would render the prior conviction devoid of constitutional support. ‘One seeking to challenge prior convictions charged against him may do so only through a clear allegation to the effect that, in the proceedings leading to the prior conviction under attack, he neither was represented by counsel nor waived the right to be so represented.’ (Original italics.) (People v. Merriam (1967) 66 Cal.2d 390, 397 ....)” (Id., at p. 215.)